Proposed Ballot Measure for 2018 – for greater voter privacy? Or preventing “get out the vote”?

Both sides missing a better idea

Here’s an interesting idea, which advocates are again aiming for the ballot in 2018, after narrowly missing the ballot with an identical measure this year: Set the default for giving your voting history to other people and groups as private, so that the state could only tell other people whether you returned a ballot if you specifically authorize it.

The nominal chief petitioner told OregonPEN that the actual author and proponent of the initiative is attorney Eric Winters, familiar to OregonPEN readers as a chief petitioners of the “No More Fake Emergencies Act,” proposed measure 2018-004. That measure was discussed somewhat sympathetically in OregonPEN (Emergency Golden Rule Violations 8/12/2016):

Democrats would do well to remember that the world turns, and their legislative majorities of the recent past can just as easily become legislative minorities in the future. The abuse of the “emergency” designation on routine bills is a significant problem that increases political polarization and dissipates social capital by letting legislative majorities escape the tether that Oregonians fashioned to restrain them somewhat.

Winters has also drafted a handful of measures targeting the Heritage Institute’s plan for health care financing that was first implemented in Massachusetts under Republican Mitt Romney and later in the US as a whole as Obamacare. Still, regardless of who is backing it, there are interesting arguments for and against the idea.

The basic idea that privacy should be the automatic setting for all information about you in the hands of government is not bad; however, the devil is in the details. The text of the proposed measure is below, seemingly identical to that used for the same proposal in 2016, a proposed measure which came quite close to being certified to appear on the ballot:

Voter Privacy Act

Section 1. The People of Oregon enact the Voter Privacy Act to allow personal control of the release of their Private Voter Information to reduce opportunities for identity theft and/or unwanted attention during election periods.
Sections 2-6 of this Act shall be added to Chapter 247 of the Oregon Revised Statutes for the protection of people registered to vote under its provisions.
 
Section 2. Private Voter Information shall not be released to the public or otherwise made available for the private use of third parties without the express written consent of the voter. The State Elections Office shall create a Voter Privacy Waiver Form allowing voters to selectively permit the public release of any or all categories of their Private Voter Information. Voter Privacy Waiver Forms cannot be processed without first authenticating the voter’s signature from the Voter Registration Database.
 
Section 3. “Private Voter Information” is information in the voter registration database that indicates a voter’s: a) Birthdate (month and day), b) phone number, c) email address or d) ballot status information. “Ballot status information” is information indicating whether or not an elections office has received or processed a ballot from an identified voter during the period between the mailing of that ballot and the corresponding deadline to vote.
 
Section 4. This Act shall not be construed to prevent an election official from personally informing a voter of the receipt or processing status of that voter’s ballot during an election. A voter may obtain personal ballot status information in person or by telephone upon providing information that reasonably identifies that person as the voter to an elections worker. Election officials may implement an online access system that permits voters to individually view their own ballot status information so long as it is designed to prevent the unauthorized release of Private Voter Information to third parties. Elections officials must expressly prohibit and take appropriate steps to restrict third parties from conducting bulk queries or multiple serial inquiries for Private Voter Information.
 
Section 5. This Act does not prevent the release of voter registration data that includes voter participation information in prior elections. This Act shall not prevent the transfer of voter registration data to an agency of the federal government to demonstrate compliance with federal election regulations.
 
Section 6. All government custodians of voter registration information shall comply with this Act within 120 days of its passage. Thereafter, any public official who intentionally releases or assists in the release of Private Voter Information to unauthorized persons in violation of this Act shall be guilty of a Class A misdemeanor. Any person who uses artifice attempting to gain unauthorized access of ballot status information for three or more voters shall be guilty of a Class A Misdemeanor and subject to a minimum fine of $500 or $25 per voter, whichever is greater.
 
Section 7. If any portion of this Act should be rendered invalid by a court of competent jurisdiction, such portion shall be severed and the remaining portions shall remain in full force and effect.

When submitted in 2016, the “Voter Privacy Act,” assigned as 2016-050, required backers to obtain 88,184 valid signatures to reach the ballot with the idea. They fell short by just over 4,000 signatures. Here is the history of the fight to get the idea on the ballot:

07/14/2015 Prospective petition filed. To begin the ballot title drafting process, chief petitioners must submit 1,000 sponsorship signatures.
 
08/11/2015 Signature verification of sponsorship signatures completed. Petition contains 1,696 signatures.
 
10/01/2015 Appealed to Supreme Court
 
11/13/2015 Judgement Received. Certified Ballot Title approved with no changes.
 
05/27/2016 Signatures submitted for verification. 104,968 unverified signatures.
 
6/29/16 Signature verification of early submittal complete. Petition contains 70,320 valid signatures, or 70.25% of the 98,100 signatures accepted for verification. Chief petitioners may submit additional signatures not later than 7/8/16.
 
07/08/2016 Additional signatures submitted for verification. 18,000 unverified signatures.
 
07/15/2016 Signature verification complete. IP 2016-050 does not contain the required number of signatures and will not appear on the November 8, 2016, General Election ballot. Petition contains 84,103 valid signatures, or 70.11% of the 119,848 signatures accepted for verification. The total number of signatures accepted includes sponsorship (2,000), primary (98,100) and supplemental (19,748) signature submittals.
 

Since the ballot title — the only thing most voters will read, if they read anything at all about the measure — has already been to the Supreme Court, we might expect that the Attorney General will rely on the same language should the idea reach the ballot in 2018.

Prohibits release of specified voter information without voter’s express written consent; changes election verification process
 

Result of “Yes” Vote: “Yes” vote prohibits public access to certain voter information, including contact information, status of voter’s ballot; limits participation of candidates, public in election verification process. 

Result of “No” Vote: “No” vote retains law allowing public, election observers, access to voter information, including ballot status, contact information unless voter demonstrated that disclosure would jeopardize safety.
 
Summary: Current state laws permit/require public officials to disclose voter registration records and, during voting period, whether a voter’s ballot was received; voters can prevent disclosure of home address, phone number, and email address by showing that disclosure would jeopardize personal safety. Measure prohibits disclosure of ballot status information and personal information without voter’s written consent; prohibition against disclosing ballot status will limit participation of candidates, public in election verification process. Elections Office must create waiver form, authenticate signature before processing waiver. Measure permits disclosure of voter participation in prior elections, disclosures to demonstrate compliance with federal law. Criminal penalties for officials violating measure, any person “who uses artifice attempting to gain unauthorized access of ballot status information for three or more voters.” Other provisions.

Opponents of the measure in 2016 were highly successful because, even if the proponents had obtained enough signatures to put it on the ballot, it likely would have been slaughtered because of the ballot title language:

The killer phrase is the one that tells voters that the measure would end the historic practice of citizens and candidates having representatives allowed to watch the ballot validation and counting to ensure that there is no hanky-panky behind the scenes (where the only voter fraud is ever likely to occur — at the wholesale level — not out at the retail level where voters cast their ballots). The fatal language is the claim that the “prohibition against disclosing ballot status will limit participation of candidates, public in election verification process.

The ban on poll monitoring that would result from the measure is doubtless why the two main opponents of the “Voter Privacy Act” in 2016 were the Chair of the Oregon Democratic Party and the head of Our Oregon, an organizing front for public employee unions.

A Better Approach

It’s difficult to tell whether there is any actual concern for voter privacy at work in this measure, or if the proponents simply want to use a crowbar to smash the Democratic Party/Public Employee Union alliance’s Get Out The Vote (GOTV) efforts, which depend on knowing exactly who has returned their ballots as soon as possible.

The much better solution is not to create a cumbersome system of “privacy waivers” that would burden the county clerks terribly and which most people would not complete. No, the better solution is to require ALL registered voters to return their ballots each election, voted or not.

This is one of the key items on the OregonPEN agenda for a better Oregon. (You needn’t vote, but you must return the ballot, 7/9/2016). That way, there is no privacy concern regarding your voting history, and campaigns have an incentive to focus on all registered voters, who will all be likely voters. From that item:

In 2017, the Governor of Oregon should propose and the Legislature should pass a law requiring that all Oregonians on the voting rolls must, during each election, participate to the extent of return their ballot by the voting deadline, voted or not.

A compulsory ballot-return law is justified on any number of bases.

First, requiring all eligible voters to get and then return a ballot will force election officials to constantly keep their voting rolls current and correct, which is their highest duty anyway.

Second, it increases the likelihood that people who are eligible but choose today to be non-voters will become voters, which is the first step to becoming engaged in citizenship.

Third, compulsory ballot returns underscore the truth that, in a democracy, voting is truly the minimum level of engagement. As such, we need to make it the minimum, by requiring that minimal action of all persons eligible.

Fourth, it puts participation in democratic self-governance on the same level with taxpaying, which is never left up to the taxpayer. You don’t have to register to pay taxes, and the tax system is set up so that you are not allowed to opt out, even if you wind up owing no taxes. Everyone is compelled, and can be punished for failure to participate in funding government; it is not too much to require that adults are all similarly required to return the ballot that can carry their choices for deciding how that funding is spent.

Again, the law would not require anyone to vote without consent – the requirement is simply ballot return.

In addition to increasing voter participation, we would also get the benefit of having constantly updated voting rolls and the ability to have assurance verging on certainty that government did its job in the election process, delivering a ballot to each person eligible in time for the person to vote if desired.

After each election, the local election officials would be charged with validating their election rolls and fixing problems. For all the non-returned ballots, the elections office would have to determine whether the eligible to vote Oregonian moved away, was out of state throughout the entire election period, died, or was otherwise prevented from returning their ballot. The person who seemed to have simply failed to return the ballot would be notified and asked to provide the justification for having failed to return the ballot.